UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 93-30
Attorney represented client in a criminal action which resulted in the client's conviction. Subsequently, the client filed a Post Conviction Relief action against attorney alleging ineffective assistance of counsel. Client has never paid the full retainer fee to attorney for his past services and now requests the attorney provide client with a copy of the client's file. Attorney has declined to return the file until client remits a $250.00 copying fee to cover the costs which will be incurred by attorney. If the full copying fee is not used the client will receive a reimbursement.
Question:
Is it ethical for an attorney whose former client has requested to receive a copy of his file, to withhold the file and exercise a retaining lien until the former criminal client remits a copying fee to the attorney?
Summary:
An attorney may not withhold the file of a former client and request payment of a copying expense under the facts presented.
Opinion:
Rule 1.16 (d) of the SCACR provides "upon termination of representation, a lawyer shall take steps to the extent reasonable and practical to protect a client's interests...
surrendering paper and property to which the client is entitled... the lawyer may retain papers relating to the client to the extent permitted by other law." Rule 1.15(b) states, "except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive...". Pursuant to Rule 1.8," an attorney may acquire a lien granted by law to secure the lawyers fee or expenses." At common law, an attorney had a right to exercise a retaining lien against a client's file. 7(a) C.J.S. Attorney and Client Sec. 357(a) (1980); 7 AM. JUR. 2d Attorneys at Law Sec. 1315 (1980). Our Supreme Court confirmed the existence of a retaining lien in appropriate circumstances in the case of In Re: An Anonymous Member of the South Carolina Bar 287 S.C. 250, 335 S.E. 2d 803 (1985).
Whether an attorney may have a valid retaining lien, the lawyer must consider whether the assertion of the retaining lien is proper and ethical in each individual case. The mere existence of a legal right does not entitle a lawyer to stand upon that right if ethical considerations would require that he forego it. Each lawyer must evaluate his or her interests against the interests of the client and/or of others who would or could be substantially or adversely affected by the assertion of a retaining lien. Of major consideration to the attorney is whether the exercise of the retaining lien would prejudice important rights or interests of the client or of other parties. Additionally the lawyer should consider whether their are less stringent means by which the matter could be resolved.
Our Court has stated that if the exercise of the retaining lien would prejudice a client's ability to defend against criminal charges or to assert or defend an important personal liberty, the lawyer should ordinarily forego the lien. The Court further stated that the financial inability of a client to pay the amount owing to the attorney should also cause the attorney to forego the exercise of the lien because of failure to pay the fee is not deliberate and thus does not constitute fraud or gross imposition by the client. In the question presented, the former client is in need of his file in order to assert a statutory right, to seek post conviction relief.